KOMBAT AND OTHERS v. BEDIAKO AND OTHERS EX PARTE KOMBAT [1971] 1 GLR 196

DIVISION: IN THE HIGH COURT, TAMALE

DATE: 28 JANUARY 1971

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Trent Cycle Co. v. Beattie (1899) 15 T.L.R. 176, C.A.

(2) Fry v. Moore (1889) 23 Q.B.D. 395; 58 L.J.Q.B. 382; 16 L.T. 545; 37 W.R. 565, C.A.

(3) Wilding v. Bean [1891] 1 Q.B. 100; 60 L.J.Q.B. 10; 64 L.T. 41; 39 W.R. 40, C.A.

[p.197] of [1971] 1 GLR 196

NATURE OF PROCEEDINGS

APPLICATION by way of an ex parte motion for substituted service of the writ of summons and statement of claim by prepaid registered letter upon the third defendant.

COUNSEL

E. O. Appiah for the applicants.

JUDGMENT OF TAYLOR J.

On 26 January 1971, the applicants took out a writ of summons accompanied by a statement of claim against the defendants. It is not necessary to set out the nature of the claim but it is noteworthy that apart from endorsing the address of the third defendant on the said writ of summons, the addresses of the first and second defendants were not indicated; Sunyani and Kumasi were the towns respectively appended, against the names of the first and second defendants. On the same day, 26 January 1971 the applicants, by their solicitor, applied to this court by an ex parte motion praying for substituted service of the writ of summons and the statement of claim by ordering the said documents to be served on the third defendant by prepaid registered post. Later on in this ruling I shall consider whether it is proper for the motion to be made ex parte.

Apparently the first and second defendants were lorry owners who had insured their respective vehicles with the third defendant. The said vehicles were involved in an accident caused, the plaintiffs alleged, by the negligence of the drivers for the first and second defendants and this accident founds the action which is the subject-matter of the writ of summons. The affidavit of the applicants was sworn to by their solicitor’s clerk and because it is the mainstay of the applicants’ application and to some extent decisive of whether this application should be granted or not I set it out hereunder in extenso: “I, Felix Ofosu-Apenteng of Tamale, make oath and say as follows:

(1) That I am a clerk to Mr. E. O. Appiah, solicitor instructed by the plaintiffs [the applicants] to prosecute their claims herein on their behalf and I have his authority to make this affidavit on their behalf.

(2) That the plaintiffs have today issued out of this honourable court the writ of summons herein accompanied by a statement of claim against the defendants herein.

(3) That the claims herein arose out of a motor accident in which two vehicles owned by the first and second defendants collided on the road.

(4) That names of the first and second defendants were disclosed by a police report on the accident which was obtained on behalf of the plaintiffs. This police report disclosed that the address of the said owners of the vehicle were not given even though these particulars were required by law to be given to the police.

(5) That the police report disclosed that both these owners had effected insurance cover with the State

Insurance Corporation.

[p.198] of [1971] 1 GLR 196

(6) That from correspondence addressed to and by State Insurance Corporation on this accident it is clear that they are in touch with these owners and that they do not know them and their whereabouts [sic.].

(7) That I am advised and verily believe that by virtue of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), the State Insurance Corporation will be vitally interested in this action on behalf of the owners.

(8) That I verily believe that if the writ of summons and the statement of claim herein are served on the State Insurance Corporation by prepaid registered post addressed to their head office through P.O. Box 2363, Accra, the same will be brought to the notice of the first and second defendants herein.” I have had great difficulty in appreciating what is intended to be conveyed by paragraph (6) of the affidavit. At first blush I thought it was an obvious allegation that from correspondence addressed to and by the State Insurance Corporation, it had become clear to the applicants that the State Insurance Corporation are in touch with the defendants and that the said State Insurance Corporation do not know the said owners and their whereabouts; I find however that this meaning becomes difficult to contain in the light of paragraph (8) of the affidavit, because paragraph (8) suggests that the State Insurance Corporation can bring the writ and statement of claim to the notice of the first and second defendants despite the allegation that they do not know the whereabouts of the first and second defendants. I doubt whether this is intended and for this reason I have considered the only other alternative open, and that is by construing the word “they” wherever it occurs in paragraph (6) as referring not to the insurance company but to the applicants. If paragraph (6) is so considered then it becomes clear that in that paragraph there is an averment that the applicants are in touch with the defendants but they do not know their whereabouts. Whichever interpretation is fastened upon the implication it is irresistible that some persons known to the applicants are in touch with the defendants. If it is the insurance company, then since there is a further allegation that they do not know the whereabouts of the defendants, it is obviously not likely that the documents can ever be brought to the notice of the defendants if substituted service is ordered. In the circumstances it seems that paragraph (8) cannot be reconciled with paragraph (6) If it is the applicants who are in touch with the defendants then they should endeavour to effect service themselves having regard to the averments that they are in touch with the defendants and substituted service cannot in such case be also ordered.

However it seems to me that the matter need not be solely decided upon merely such a narrow issue because it is possible that there has been a typographical error and that perhaps between the words “are” and “in” in paragraph (6) of the affidavit the word “not” may have been omitted, in which case if “they” as is used in paragraph (6) refers to the applicants, then the affidavit will be in order and paragraphs (6) and (8) will be apparently reconcilable. I do not propose to correct the [p.199] of [1971] 1 GLR 196 affidavit. In fact I doubt whether that can be properly done; nor do I think I can base my ruling on a speculative interpretation of paragraph (6) of the affidavit.

Be that as it may, in my view, apart from the difficulties posed by paragraph (6), there are also very serious reasons why the order for substituted service should be refused. In the course of the argument I drew counsel’s attention to the fact that there were no addresses of the first and second defendants endorsed on the writ and I thought that this was a matter which could very well affect the question of whether this was a proper case for an order for substituted service. I drew counsel’s attention to a note to Order 5, r. 2 of the English Rules of Supreme Court in The Annual Practice, 1962 at p. 53 under the heading “Defendant’s Address” which reads as follows (the emphasis is mine): “The description or occupation of defendants in the writ need not be stated, but their addresses must be given with as much exactitude as possible.” Order 5, r. 2 is mutatis mutandis not unlike our Order 5, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). I also drew counsel’s attention to a further note to Order 2, r. 3 in The Annual Practice, 1962 at p. 14 headed “Address of the Defendant” which reads as follows (the emphasis is mine):

“This [meaning the address of the defendant] is not provided for in the rules, but the forms, which are included in the rules … require it. It is a necessary part of a writ in personam (The W.A. Sholten, 13 P.D. 8); . . .”

Order 2, r. 3 is identical with our own Order 2, r. 3.

Counsel however submitted that there is no need to endorse the address on the writ of summons. With the utmost respect to counsel I think this cannot be right and I think the rules in the White Book support the view that the address of the defendant “must be given with as much exactitude as possible.” I shall refer to this matter of address later on in this ruling. It is sufficient now to advert to the principles usually followed in ordering substituted service. These principles are stated in The Annual Practice, 1962 at p. 133 and are therein supported by the relevant authorities. The following is set out in the paragraph headed, “Where person to be served is usually resident within the jurisdiction” and it reads: “The affidavit should state (1) that a writ (a copy of which should be exhibited) of such a date has been duly issued; (2) that such and such efforts, stating them with great particularity, have been made to serve the defendant personally; and that all practicable means of effecting personal service have been exhausted, . . . and that prompt personal service is impossible; (3) that the substituted service which is proposed will probably come to the knowledge of defendant; and (4) if the defendant is evading service, . . . the affidavit should state the deponent’s belief to that effect, giving the facts upon which the inference is founded. The affidavit should also show whether the defendant is within the jurisdiction or whether he is believed to be so. It is not necessary to allege that defendant has not appeared.”

[p.200] of [1971] 1 GLR 196

It is clear from the affidavit filed in support of the ex parte motion that requirements (1) and (2) and whether the defendant is within the jurisdiction have not been complied with. Indeed requirements (1) and

(2) could not possibly be complied with since the writ was taken on 26 January 1971 and the ex parte motion on 26 January 1971. Furthermore the defendants are according to the writ probably resident in Sunyani and Kumasi. However, counsel has argued that he is proceeding under Order 10, r. 1 (e) which provides that:

“1. Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either— . . .

(e) by prepaid registered letter addressed to the defendant at the address indicated in the affidavit filed by the plaintiff in support of his application for substituted service, whereas there is reasonable ground for believing that it will reach him.”

I think having regard to Order 10, r. 1 (e) the contention of counsel would seem to be well-founded and perhaps the failure to comply with requirements (1) and (2) may in certain circumstances not be fatal. I apprehend though that if that is so an applicant who does not even attempt personal service must show very good reasons indeed for not so attempting. Presumably in this case the very good reason is that the applicants do not know the addresses. The requirements of showing the impossibility of prompt personal service and whether the defendant is within the jurisdiction ought of course be complied with but they have not. However if they had been complied with the further question would still be left as to whether there are reasonable grounds for believing that the documents will reach the defendants. Will the documents reach the defendants having regard to the unfortunate wording of paragraph (6) of the affidavit? Without belabouring this point unduly I propose to deal with the wider question as to whether a writ of summons on which the address of a defendant has not been endorsed can be the subject-matter of an application for substituted service. In this respect it is necessary to refer once again to Order 10, r. 1. It appears to me that substituted service can only be resorted to where personal service cannot be effected for stated reasons. This means that if, at the time of the issue of a writ for service within the jurisdiction, there could at law have been personal service of it upon the defendant sought to have been served, but circumstances prevented such service being made, then substituted service of such a writ may be allowed: Trent Cycle Co. v. Beattie (1899) 15 T.L.R. 176, C.A. On the other hand if at the time of the issue of a writ, personal service of it could not have been made, then unless it is a case of evading service, substituted service cannot be ordered: Fry v. Moore (1889) 23 Q.B.D. 395, C.A. In the case before me since there were no addresses for service and the defendants may very well not be within the jurisdiction, personal service cannot obviously be made. No one can overreach himself by attempting the impossible. Indeed in Wilding v. Bean [1891] 1 Q.B. 100, C.A., a case which [p.201] of [1971] 1 GLR 196 is for all practical purpose on all fours with the instant case, the plaintiff issued a writ of summons for service within the jurisdiction and when he issued it, he did not know the address of the defendant. He later obtained an order for substituted service upon the defendant’s solicitor. It turned out that the defendant at the time of the issuance of the writ was out of the jurisdiction and had remained out from the time that the writ was issued.

The Court of Appeal set aside the order permitting substituted service on the defendant’s solicitor and gave as its reasons, following Fry v. Moore (supra), that the writ of summons could not at the date of its issue be served personally upon the defendant. It seems to me that the absence of the address of the defendant, which as I have shown, contrary to the submission of counsel, is an essential feature of the writ, makes it inexpedient to order substituted service. Personal service cannot obviously be effected. I would have thought that in a case like this the applicants must show inter alia that they have at least made efforts at securing the addresses and that these efforts have been futile. Although applications for substituted service are made normally ex parte, since the insurance company in this case is being asked in effect to serve the writ for the applicants, I think it is only fair and just that the application be made on notice. I see nothing in the rules which militates against this and in my view it is the only way that the audi alteram partem principle can be brought into play to do substantial justice for all of the parties. In any case the wording of Order 10, r. 1 shows quite clearly that the matter is within the discretion of the court, I do not conceive it to be a proper exercise of discretion to grant the order asked for when I can see that apart from the other reasons I have already given, the applicants have not made any real efforts to obtain the addresses of the first and second defendants. It is conceded that the very good reason why the order is asked for is because the applicants do not know the addresses, but in my view the equally very good reasons disclosed in the affidavit why they do not know the addresses is because they have not made any real effort, having regard to the circumstances, to obtain them. In such a case to grant the order is to look only at the interest of one party to a litigation and to close one’s eyes to the greater duty of looking after the interests of all parties whether they are actually before the court or not. Counsel for the applicants has argued this very simple ex parte motion with commendable skill and has demonstrated by his beautiful analysis how an apparently easy legal matter can generate complex and interesting legal issue in the hands of an industrious professional man. Because of this, it is with considerable regret that I find myself unable to grant the application for substituted service for the reasons which I have stated in this ruling. The application is accordingly refused.

DECISION

Application refused.

T. G. K.